26 CO 32, 26SA66 Boe, Bella v. Children's Hospital

OCR transcription for search; preserved printed pages are authoritative

The opinion summaries are not part of the Colorado Supreme
Court's opinion. They have been prepared solely for the reader's
convenience. As such, they may not be cited or relied upon. If
there is any discrepancy between the language in the summary
and the opinion, the language in the opinion controls.

ADVANCE SHEET HEADNOTE
May 18, 2026

2026 CO 32

No. 26SA66, Boe v. Child.'s Hosp. Colo. - Preliminary Injunction - Colorado
Anti-Discrimination Act-Public Interest- Balance of the Equities-Gender
Identity.

In this original proceeding under C.A.R. 21, the supreme court concludes
that petitioners satisfied all the required factors for granting a preliminary
injunction under Rathke v. MacFarlane, 648 P.2d 648, 653-54 (Colo. 1982), and the
trial court therefore abused its discretion by denying petitioners' motion for a
preliminary injunction.

Under the public-interest factor, the court holds that, when anti-
discrimination laws and protected classes are involved, it is inappropriate for a
trial court to conduct a purely numerical comparison of the number of people who
will or might be harmed if a preliminary injunction is or isn't issued. It also holds
that the balance-of-the-equities factor tends to support granting an injunction
when the alleged harm to the nonmoving party is speculative and the moving
party has demonstrated actual harm.

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The supreme court makes the order to show cause absolute, reverses the
trial court's order, and remands the case to the trial court to grant petitioners'
motion and issue the requested injunction.

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# The Supreme Court of the State of Colorado 2 East 14th Avenue . Denver, Colorado 80203

2026 CO 32

Supreme Court Case No. 26SA66
Original Proceeding Pursuant to C.A.R. 21
District Court, City and County of Denver, Case No. 26CV30232
Honorable Ericka F. H. Englert, Judge

In Re
Plaintiffs:

Bella Boe, Chloe Coe, Danielle Doe, and Gabriella Goe,

V.

Defendant:

Children's Hospital Colorado.

Order Made Absolute
en banc
May 18, 2026

Attorneys for Plaintiffs:

Greisen Law, LLC

Paula Greisen

Denver, Colorado

Demanding Equality, Inc.

John M. McHugh

Denver, Colorado

Attorneys for Defendant:

Garnett Powell Maximon Barlow & Farbes

Stanley L. Garnett

Leah M. Regan-Smith

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Kristin L. Arthur
Denver, Colorado

Children's Hospital Colorado
Patrick O'Rourke
Aurora, Colorado

Attorneys for Amici Curiae Denver Health and Hospital Authority and
Colorado Hospital Association:
Womble Bond Dickinson (US) LLP
Kendra N. Beckwith
Denver, Colorado

JUSTICE HOOD delivered the Opinion of the Court, in which CHIEF JUSTICE
MÁRQUEZ, JUSTICE GABRIEL, JUSTICE BERKENKOTTER, and JUSTICE
BLANCO joined.
JUSTICE BOATRIGHT, joined by JUSTICE SAMOUR, dissented.

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JUSTICE HOOD delivered the Opinion of the Court.

11 In this unusually fraught case-which directly and indirectly implicates
efforts to limit the risk of harm to a wide variety of medically vulnerable
children- we are asked essentially the following question: Did the trial court err
by refusing to enter a preliminary injunction that would have required
respondent, Children's Hospital Colorado ("CHC"), to repeal its recent
suspension of medical gender-affirming care, when that repeal might invite the
wrath of the federal government?1

12 With sympathy for the petitioners, respondent's employees and
representatives, and the trial court that had to blaze an uncertain trail, we conclude
that the trial court erred in its application of the test we adopted in Rathke v.
MacFarlane, 648 P.2d 648, 653-54 (Colo. 1982), for determining whether to grant a
preliminary injunction. Therefore, we reverse the trial court's decision, and we
order the court to issue a preliminary injunction directing CHC to restore its

1 Gender-affirming care ranges from choice of pronouns to hormonal treatment
and surgery. Petitioners and CHC agree that medical gender-affirming care is a
subset of gender-affirming care that refers to medical procedures such as puberty
blockers and hormone therapy used to treat gender dysphoria. Gender dysphoria
"refers to the distress that may accompany the incongruence between one's
experienced or expressed gender and one's assigned gender." Am. Psychiatric
Ass'n, Diagnostic and Statistical Manual of Mental Disorders: DSM-5-TR 511 (5th ed.
2022).

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offering of medically necessary medical gender-affirming care, pending a decision
on the merits.

## I. Facts and Procedural History

T3
Petitioners are minor patients representing a class of similarly situated
individuals who had been receiving gender-affirming care from CHC's TRUE
Center for Gender Diversity ("TRUE Center"), a department created for the
purpose of supporting gender-diverse and transgender patients.2

14 CHC is the leading pediatric hospital in the Rocky Mountain Region,
providing sometimes lifesaving medical care to a broad variety of ailing children
from Colorado, Wyoming, New Mexico, Kansas, Montana, and other states.

15 On December 18, 2025, the United States Secretary of Health and Human
Services, Robert F. Kennedy, Jr., issued a declaration proclaiming that medical
gender-affirming care is neither safe nor effective and "fail[s] to meet professional
recognized standards of health care." U.S. Dep't of Health & Hum. Servs.,
Declaration of the Secretary of the Department of Health & Human Services RE: Safety,
Effectiveness, and Professional Standards of Care for Sex-Rejecting Procedures on
Children and Adolescents, at 9 (Dec. 18, 2025) ("Kennedy Declaration"). The

2 "[G]ender diverse" is a nondiagnostic term that refers to "[physical] features or
behaviors that are not typical (in a statistical sense) of individuals with the same
assigned gender in a given society and historical era." Am. Psychiatric Ass'n,
supra, at 511. "Transgender" refers to the broad spectrum of individuals whose
gender identity is different from the gender they were assigned at birth. Id.

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Kennedy Declaration further warned that the federal Department of Health and
Human Services ("HHS") may seek to exclude entities or individuals from federal
health care payment programs if they provide medical gender-affirming care to
minors. Id.

16 CHC participates in federal health care payment programs and receives
significant funding from the federal government. In 2024, CHC received $182.6
million in funding, mostly from the federal government. Almost half of CHC's
patients are Medicaid enrollees, and all commercial insurance companies require
hospitals to participate in federal health care payment programs to qualify for
contracts and to bill for services.3 If CHC were excluded from federal health care
payment programs, it wouldn't be able to treat any patients enrolled in Medicaid
or serve patients who have commercial insurance.

17 In response to the Kennedy Declaration, the Colorado Attorney General
joined other state attorneys general in filing a lawsuit in federal court in Oregon,
Oregon v. Kennedy, No. 6:25-cv-02409-MTK, at *2 (D. Or. Apr. 18, 2026)
(unpublished order) ("Oregon Order"), challenging the legality of the Declaration.
18 Despite the pending lawsuit, HHS's general counsel announced on the
social media platform X that he was referring CHC to the HHS Office of the

3 Medicaid is a joint federal-state program that provides health care coverage for
low-income individuals and individuals with disabilities. See 42 U.S.C. § 1396d.

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Inspector General ("OIG") for investigation for providing medical gender-
affirming care in violation of the Kennedy Declaration. A few days later, OIG
agreed not to exclude any entities until the Oregon court ruled on the then-pending
motion for summary judgment or thirty days after the hearing on the motion for
summary judgment, whichever was earlier.

19 At the beginning of January 2026, CHC notified petitioners that it could no
longer provide medical gender-affirming care-including hormone therapy and
puberty blockers- to transgender patients under the age of eighteen. However,
CHC continues to offer hormone therapy and puberty blockers to cisgender youth
for various reasons.4

110 Petitioners and other transgender youth who sought such care from CHC
were suddenly abandoned during a precarious time. Without access to puberty
blockers and hormone therapy, these children will go through puberty and
develop characteristics of a sex with which they do not identify. Petitioners have
experienced depression, and in at least two instances, suicidal ideation, because
they can no longer access medical gender-affirming care.

111 Petitioners filed a class action seeking an injunction to prevent CHC from
refusing to provide medically necessary care to its transgender youth patients.

4 "Cisgender" describes individuals whose gender expression is consistent with
the gender they were assigned at birth. Am. Psychiatric Ass'n, supra, at 511.

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They argued that CHC's decision to stop providing gender-affirming care was
discriminatory on the basis of gender identity, sex, and disability and thus violated
the Colorado Anti-Discrimination Act ("CADA"); specifically, section 24-34-601,
C.R.S. (2025).5 Regarding gender identity, petitioners assert they are being
discriminated against because CHC is denying transgender youth access to
puberty blockers and hormone therapy while continuing to provide the same
medication to cisgender youth.

112 The trial court denied petitioners' request for a preliminary injunction,
concluding that they hadn't satisfied the six-factor test we adopted in Rathke for
granting a preliminary injunction. Boe v. Child.'s Hosp. Colo., No. 26CV30232, at 22
(Dist. Ct., City & Cnty. of Denver, Feb. 13, 2026) (unpublished order). The trial
court concluded that petitioners (1) were likely to succeed on the merits of their
CADA claim; (2) had shown there was danger of real, immediate, and irreparable
injury; and (3) had shown there was no plain, speedy, and adequate remedy at
law. Id. at 18-20. Nevertheless, it denied petitioners' request for injunctive relief

5 The parties did not explicitly address discrimination on the basis of sex at the
preliminary injunction hearing, and the trial court order only briefly mentions
disability discrimination in its analysis. Boe v. Child.'s Hosp. Colo., No. 26CV30232,
at 18-19 (Dist. Ct., City & Cnty. of Denver, Feb. 13, 2026) (unpublished order).
Petitioners need only show a reasonable probability of success on the merits as to
one of its CADA claims for a preliminary injunction to issue. Accordingly, we
focus our analysis on their claim of discrimination on the basis of gender identity.

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because it found that (1) the injunction was contrary to the public interest; (2) the
balance of the equities favored CHC; and (3) the injunction was not sufficiently
specific to preserve the status quo pending a trial on the merits. Id. at 18-22.

113 We granted petitioners' request for review under C.A.R. 21.6

## II. Analysis

114 We start by explaining our decision to exercise our original jurisdiction in
this case and then discuss the applicable standard of review. Next, we provide an
overview of the Rathke factors, which a moving party must satisfy for a trial court
to grant a preliminary injunction. Finally, we address the disputed factors and
review the trial court's application of those factors to the facts of this case.

## A. Original Jurisdiction

115 Relief under C.A.R. 21 is an extraordinary remedy, and the decision to
exercise original jurisdiction is a matter solely within our discretion. C.A.R.
21(a)(2); In re Marriage of Green, 2024 CO 24, 1 8, 547 P.3d 1095, 1097. Such relief
may be granted only when no other adequate remedy is available. Edwards v. New
Century Hospice, Inc., 2023 CO 49, 1 12, 535 P.3d 969, 972. We have exercised our

6 The issue set forth in the petition is as follows:

1\. When the lives of children are at stake, did the district court err by
allowing the continued violation of the law and refusing to order
Respondent to provide medically necessary gender-affirming care
to prevent "certain" irreparable injury to Plaintiffs.

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original jurisdiction when a petition also raises issues of first impression that are
of significant public importance. Id.

116 We exercise our jurisdiction here because an appellate remedy is
inadequate: Petitioners will suffer irreparable harm without our intervention. The
petition also raises important questions about how to apply certain preliminary-
injunction factors to anti-discrimination cases.

## B. Standard of Review

117 We review a trial court's denial of a motion for a preliminary injunction for
an abuse of discretion. Rathke, 648 P.2d at 653. Under this standard, we examine
whether the court's ruling is based on a misapplication or misinterpretation of the
law, or is otherwise manifestly arbitrary, unreasonable, or unfair. People v. West,
2025 CO 61, 1 13, 578 P.3d 832, 835; People v. Chavez, 2020 COA 80M, 1 8, 486 P.3d
377, 378. We review a trial court's findings of fact for clear error; meaning, we
reverse only if there is no support for those findings in the record. Trinidad Area
Health Ass'n v. Trinidad Ambulance Dist., 2024 COA 113, 1 22, 562 P.3d 928, 933. We
review a trial court's legal conclusions de novo. Evans v. Romer, 854 P.2d 1270,
1275 (Colo. 1993).

## C. Preliminary Injunction

118 To grant a party's motion for a preliminary injunction, the trial court must
find that the moving party has demonstrated all six Rathke factors:

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(1) a reasonable probability of success on the merits; (2) a danger of
real, immediate, and irreparable injury which may be prevented by
injunctive relief; (3) that there is no plain, speedy, and adequate
remedy at law; (4) that the granting of a preliminary injunction will
not disserve the public interest; (5) that the balance of equities favors
the injunction; and (6) that the injunction will preserve the status quo
pending a trial on the merits.

648 P.2d at 653-54 (citations omitted).

119 The parties don't dispute that petitioners have satisfied the second and third
factors. Therefore, we focus our analysis on the remaining four factors, starting
with those the court found lacking; namely, the fourth, fifth, and sixth because
they form the basis for the petition.

120 Then, we address CHC's challenge to the trial court's finding that
petitioners satisfied the first factor: a reasonable probability of success on the
merits. Although CHC has not petitioned this court for relief, and therefore the
procedural posture of its challenge is unusual, we choose to address it now
because it is so intertwined with the issues presented by petitioners.7

## 1. Public Interest

T21 A court must ensure that, if issued, an injunction "will not disserve" the
public interest. Id. at 654. Whether the trial court applied the appropriate test for

7 We granted the petition under C.A.R. 21, which provides no mechanism for a
cross-petition. Ordinarily, we confine ourselves to the issues presented in the
petition. In this instance, we make a rare exception to our practice because of the
unusual circumstances presented by this case.

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discerning the public interest in an anti-discrimination case is a question of law
that we review de novo. See Evans, 854 P.2d at 1275.

122 In evaluating the public interest, courts may look to pronouncements by our
state's elected representatives. See Colo. Mining Ass'n v. Bd. of Cnty. Comm'rs,
199 P.3d 718, 731 (Colo. 2009). We presume that their policy choices are made in
the public's interest. See Kourlis v. Dist. Ct., 930 P.2d 1329, 1336 (Colo. 1997).

123 The Colorado General Assembly enacted CADA to "prohibit[]
discrimination based on [identified] protected classes and [to] ensure[] that every
Coloradan is able to enjoy freedom from discrimination." § 24-34-300.7(1), C.R.S.
(2025); see also Elder v. Williams, 2020 CO 88, 1 27, 477 P.3d 694, 699 ("CADA claims
derive from statutory duties designed to implement the broad policy of
eliminating intentional discriminatory or unfair employment practices, rather than
to compensate an individual for personal injuries.").

124 CADA states that

[i]t is a discriminatory practice and unlawful for a person, directly or
indirectly, to refuse, withhold from, or deny to an individual or a
group, because of disability, ... sex, ... [or] gender identity. .. the
full and equal enjoyment of the goods, services, facilities, privileges,
advantages, or accommodations of a place of public
accommodation ....

§ 24-34-601(2)(a).

125 The General Assembly has also specifically identified a public interest in
protecting Colorado citizens who seek medical gender-affirming care by

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declaring, "It is the public policy of Colorado to ensure [that decisions related to
gender-affirming health care services] can be made without unnecessary
governmental interference." § 24-34-300.7(2).

126 Beyond CADA, the General Assembly has repeatedly declared that gender
identity is a protected class. See § 1-47-107, C.R.S. (2025) (voting rights); § 5-3-210,
C.R.S. (2025) (extension of consumer credit); § 6-23-104, C.R.S. (2025) (primary
health care providers); § 6-24-110, C.R.S. (2025) (cemeteries); § 8-5-101, C.R.S.
(2025) (wage equality); § 10-3-1104.9, C.R.S. (2025) (deceptive insurance practices);
§ 12-245-202, C.R.S. (2025) (regulation of mental health care); § 13-93-102, C.R.S.
(2025) (attorney licensing); § 18-1-714, C.R.S. (2025) (victims' rights); § 19-1-130,
C.R.S. (2025) (foster care); § 19-2.5-1502.5, C.R.S. (2025) (juvenile justice system);
§ 22-1-142.5, C.R.S. (2025) (public school graduation ceremonies); § 23-1-137.7,
C.R.S. (2025) (higher education graduation ceremonies); § 24-18-307, C.R.S. (2025)
(law enforcement facial recognition service); § 24-34-502, C.R.S. (2025) (housing);
§ 24-34-701, C.R.S. (2025) (advertising); § 24-90-122, C.R.S. (2025) (public libraries);
§ 25-2-110, C.R.S. (2025) (death certificates); § 25-2-113.8, C.R.S. (2025) (birth
certificates); § 25.5-5-329, C.R.S. (2025) (family planning services); § 26.5-1-116,
C.R.S. (2025) (preschool graduation ceremonies); § 28-5-103, C.R.S. (2025) (veteran
affairs).

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127 Thus, it's hardly surprising that the trial court recognized that granting the
requested injunctive relief would serve the public interest by protecting petitioners
and other vulnerable transgender and gender-diverse youth. Boe, at 20. Colorado
law makes it unmistakably so.

128 But the trial court still found itself in a bind. It worried that ordering CHC
to "violat[e] .. . federal law," as it put it, could have catastrophic consequences for
a larger segment of the public. Id. at 21 & n.2. It reasoned that issuing an injunction
would disserve the public interest because it could prompt HHS to exclude CHC
from federal health care payment programs, which could force CHC to shut down.
Id. at 20. And if CHC were to shut down, it would lose the ability to provide any
pediatric care to thousands of patients throughout the Rocky Mountain Region. Id.
Thus, the court found that "the requested injunction could create a greater risk to
a greater number of individuals, which would adversely affect the public interest."
Id. at 21.

129 In reaching this conclusion, the trial court relied on Trinidad, an opinion
from a division of our court of appeals. Id. at 17. In Trinidad, a different trial court
denied a motion for an injunction that would have compelled an ambulance
district to perform inter-facility transfers even when that would leave no crew
available to immediately respond to incoming 911 calls. 11 43-44, 562 P.3d at 936.
The division affirmed the trial court's decision because granting the preliminary

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injunction "could 'create a greater risk to a greater number of individuals."" Id.
Trinidad, however, did not involve a protected class. The case before us does.

130 We conclude that a Trinidad-style strict numerical comparison of affected
individuals isn't appropriate when the individuals seeking injunctive relief are
part of a protected class and seeking an injunction because of discrimination based
on that protected class. Were it otherwise, minority groups would always lose.
But that is not the law. On the contrary, that's precisely why we have protected
classes. Cf. United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938)
(suggesting more protection is required when there is prejudice against discrete
and insular minorities).8

131 The trial court's concern about opposing the public interest by ordering
CHC to "violat[e] . . . federal law" is also misplaced. Why? Because the Kennedy
Declaration isn't federal law. See Regular Route Common Carrier Conf. of Colo. Motor
Carriers Ass'n v. Pub. Utils. Comm'n, 761 P.2d 737, 748-49 (Colo. 1988)
(distinguishing general statements of policy that don't carry the force of law from

8 Transgender youth comprise approximately 3.3% of the youth population in the
United States. Jody L. Herman & Andrew R. Flores, How Many Adults and Youth
Identify as Transgender in the United States? (Aug. 2025), https://
williamsinstitute.law.ucla.edu/publications/trans-adults-united-states/

[https://perma.cc/U5KP-X5WS]. So, transgender youth will always represent
fewer individuals when compared to the population at large, and a purely
numerical comparison will always leave them without protection when they are
discriminated against based on gender identity.

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substantive rules, which must go through formal rulemaking and therefore do
carry the force of law); see also Burroughs Wellcome Co. v. Schweiker, 649 F.2d 221,
224 (4th Cir. 1981). A declaration from the HHS secretary can be a basis for
exclusion from federal health care payment programs, but the Declaration itself
isn't a federal law banning gender-affirming care. See 42 U.S.C. § 1320a-7(b)(6)(B)
(authorizing HHS to exclude an entity from federal health care payment programs
if the secretary determines that the quality of care the entity is providing fails to
meet professionally recognized standards of health care); Kennedy Declaration,
supra, at 9 ("This declaration does not constitute a determination that any
individual or entity should be excluded from participation in any Federal health
care program. Any such determination could only be made after a separate
determination under 42 C.F.R. § 1001.701 .... ").

132 Furthermore, since the trial court issued its order here, the federal district
court in Oregon has issued its opinion, concluding that the Kennedy Declaration is
unlawful and enjoining HHS from initiating enforcement actions based, in whole
or in part, on the Kennedy Declaration. Oregon Order, supra, at *2.

133 Because any potential harm to the public's interest in access to health care is
speculative, and because the General Assembly has stated that it is in the public's
interest to prohibit discrimination against individuals based on gender identity

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and to protect those individuals' access to medical care, we conclude that the trial
court erred by finding that petitioners failed to satisfy the public-interest factor.

## 2. Balance of the Equities

134 The balance-of-the-equities factor allows a trial court to consider "whether
the threatened injury to the plaintiff outweighs the threatened harm the
preliminary injunction may inflict on the defendant." Rathke, 648 P.2d at 654.
Unlike the public-interest factor, which looks at the impact on the broader public,
this factor focuses on balancing the harms (or lack thereof) to the parties in the
case. This factor militates in favor of granting an injunction if the alleged harm to
the nonmoving party is too speculative and the moving party has demonstrated
actual harm. RoDa Drilling Co. v. Siegal, 552 F.3d 1203, 1215 (10th Cir. 2009)
(requiring more than "speculation" to show that potential harm to the defendant
outweighed actual injury to the plaintiff); see also, e.g., Am. Invs. Life Ins. Co. v. Green
Shield Plan, Inc., 358 P.2d 473, 475-76 (Colo. 1960) (explaining that a court shouldn't
issue an injunction if the harm to the moving party is too speculative).

135 Petitioners, the moving party, have demonstrated that they face actual and
continuing physical and psychological harm if the preliminary injunction isn't
issued. Without access to medical gender-affirming care, petitioners are likely to
experience irreversible physical changes to their bodies that are inconsistent with
their gender identity. Puberty blockers are a type of medical gender-affirming care

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that use hormones to delay the natural onset of puberty. Boe, at 4. Doctors may
prescribe puberty blockers to allow minor patients more time to consider their
gender identity. Id. Going through puberty causes physical changes that are
difficult, if not impossible, to reverse without surgery. Id. When puberty blockers
are stopped, puberty proceeds in accordance with biology. Id.

136 This harm to petitioners is real and actively occurring. Petitioner Gabriella
Goe9, a nine-year-old who started living as a girl by her fourth birthday and has
been a patient at the TRUE Center since the age of six, was expecting to start using
puberty blockers in March or April 2026 to allow her more time to decide whether
to go through testosterone-led puberty. Gabriella's mother testified at the
injunction hearing that if Gabriella can't get puberty blockers before puberty
begins, she will be devastated.

137 The denial of care has already caused at least one of the petitioners to suffer
grave psychological harm. Petitioner Danielle Doe was diagnosed with gender
dysphoria at a young age, and her family decided to move from Texas to Colorado
so they could live in a state with more protections for transgender people. Danielle
started puberty blockers when she was twelve years old, and she has been

9 With the trial court's permission, petitioners filed under pseudonyms. We use
the same pseudonyms here. Consequently, we forgo our protocol of using initials
for minors.

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receiving other medical gender-affirming care from the TRUE Center. After
learning that CHC could no longer provide her care, Danielle was hospitalized at
CHC for a depressive episode. She wrote her mother a letter that expressed
suicidal ideation, stating, "If I don't see you again, I love you."

138 The nonmoving party, CHC, has also demonstrated significant potential
harm if the court issues the preliminary injunction and HHS follows through on
its threat to exclude CHC from federal health care payment programs. However,
the threat of harm to CHC remains speculative, and CHC has other avenues to
address it. Issuing the preliminary injunction petitioners seek won't cause CHC's
immediate exclusion from federal health care payment programs or cause it to
shut down. See generally 42 C.F.R. § 402.212.

139 Before HHS may lawfully exclude CHC from federal health care payment
programs, it must follow administrative procedures, which include providing
proper notice to CHC and giving CHC an opportunity to respond. Id. If HHS
determines that exclusion is warranted, CHC may request a hearing before an
administrative law judge to determine whether "[t]he basis for the imposition of
the sanction exists." 42 C.F.R. § 1001.2007(a)(1)(i). The Oregon Order declared the
Kennedy Declaration unlawful, Oregon Order, supra, at *2; therefore, presently,
the Kennedy Declaration may not be used as a basis to exclude entities from
federal health care payment programs. True, HHS may appeal the Oregon Order

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or devise a new way to exclude entities that provide medical gender-affirming
care, but even if this were to occur, opportunities for further judicial review exist.
140 Critically, if HHS seeks exclusion, CHC may be able to obtain judicial review
of the agency's action without first exhausting administrative remedies. See
42 U.S.C. § 1320a-7(f)(1) (incorporating 42 U.S.C. § 405(g) to authorize judicial
review of actions of the secretary of HHS). The United States Supreme Court has
recently reaffirmed federal courts' ability to waive exhaustion requirements for
equitable and practical reasons, particularly when exhaustion would be inefficient,
or in the words of the Court, "pointless, wasteful, or too slow." Santos-Zacaria v.
Garland, 598 U.S. 411, 418 (2023); see also Smith v. Berryhill, 587 U.S. 471, 478 (2019)
(clarifying that the "element of administrative exhaustion" in 42 U.S.C.
§ 405(g)-the exhaustion requirement that applies to HHS exclusion
procedures-may be "excused by the courts"). And the Tenth Circuit has
recognized an exception to the exhaustion requirement in 42 U.S.C. § 405(g) if
exhaustion would be futile, irreparable harm would result, and a colorable
constitutional claim that is collateral to the substantive claim of entitlement is
raised. Koerpel v. Heckler, 797 F.2d 858, 862 (10th Cir. 1986) (citing Mathews v.
Eldridge, 424 U.S. 319, 328 (1976)).

141 Here, CHC can assert that the exception should apply because
administrative law judges don't have the authority to enjoin an act of the secretary,

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42 C.F.R. § 1005.4(c)(4), and there is no process to stay CHC's exclusion during the
appeals process. Thus, the administrative appeals process in this scenario would
be futile.

142 Moreover, CHC could argue that because the exclusion would begin twenty
days after the notice of exclusion and because exclusion would cut CHC off from
a major funding source and force it to close, it would suffer irreparable harm if it
were forced to exhaust administrative remedies. Given the grave consequences of
exclusion, CHC can raise a colorable due process claim based on the inadequacy
of HHS's exclusion procedures. Therefore, if HHS seeks exclusion, CHC may seek
immediate judicial review. Once in federal court, CHC can request a preliminary
injunction to stop the exclusion while the court reviews the merits of the case.
5 U.S.C. § 705.

143 To further demonstrate the threat of harm it faces, CHC also highlights the
Department of Justice's ("DOJ") efforts to subpoena medical records of patients
who have received gender-affirming care and personnel records of the medical
professionals who provided such care as an example of the unrelenting nature of
this administration's efforts to attack providers of gender-affirming care. The DOJ
is investigating providers of medical gender-affirming care to youth and the
United States District Court for the Northern District of Texas recently granted the
DOJ's petition to enforce a subpoena for such medical and personnel records

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against Rhode Island Hospital. In re Admin. Subpoena 25-1431-032,
No. 4:26-mc-00006-O (N.D. Tex. Apr. 30, 2026) (unpublished order). CHC is in
ongoing litigation in the United States District Court for the District of Colorado
to quash a similar subpoena the DOJ issued to it. In re Dep't of Just. Admin. Subpoena
No. 25.1431-030, No. 25-mc-00063-SKC-CYC (D. Colo. filed Aug. 8, 2025). But CHC
is in a different procedural posture than Rhode Island Hospital, so the order from
the United States District Court for the Northern District of Texas doesn't
guarantee a specific outcome in CHC's case. While we understand the seriousness
and likelihood that HHS will follow through on the threatened action, at this point
and before this court, those threats remain speculative.

144 Therefore, given all of the contingencies in play and the various
opportunities CHC has to avoid exclusion, we conclude that the actual immediate
and irreparable harm to petitioners outweighs the speculative harm CHC may face
if the federal government further acts against it. The trial court erred in concluding
that the balance of the equities didn't favor petitioners.10

10 This is not to say that speculative harm can never outweigh actual harm to a
plaintiff, but under the facts of this case, the balance tilts in favor of petitioners'
actual harm.

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## 3. Preserving the Status Quo

145 The purpose of an injunction is to preserve the status quo and to protect the
rights of the parties pending a final decision on the merits. Anderson v. Pursell,
244 P.3d 1188, 1196 (Colo. 2010). The status quo is the last uncontested status
between the parties before the dispute developed. Dominion Video Satellite, Inc. v.
EchoStar Satellite Corp., 269 F.3d 1149, 1155 (10th Cir. 2001). When the
implementation of a new rule is involved, the appropriate status quo is "the status
quo before the rule was enacted." Sanger v. Dennis, 148 P.3d 404, 419 (Colo. App.
2006). To maintain the status quo, "injunction[s] prohibiting conduct must be
sufficiently precise to enable the party subject to the [injunction] to conform its
conduct to the requirements." Colo. Springs Bd. of Realtors, Inc. v. State, 780 P.2d
494, 499 (Colo. 1989).

146 Here, before the dispute arose-that is, before CHC suspended providing
medical gender-affirming care to transgender youth - doctors and other medical
personnel at CHC provided medical gender-affirming care to youth patients when
they deemed it medically necessary to do so. Thus, the status quo that the
injunction would preserve is CHC's pre-January 2026 policy of providing
medically necessary medical gender-affirming care to transgender patients under
the age of eighteen.

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147 Petitioners are simply asking CHC to revert to the level of care it offered
before CHC's suspension of care in response to the Kennedy Declaration, not to
provide new services. They are asking CHC to allow providers to give medical
gender-affirming care to transgender youth if the provider deems such care
necessary; they are not asking CHC to force providers to provide such care. CHC
can't force providers to prescribe gender-affirming care to individual patients, but
it can define the scope of services it offers. Because CHC offered medical gender-
affirming care until January 2026, the requested injunction simply preserves that
status pending resolution of the merits of this dispute.

148 The trial court also found that the terms of the proposed injunction weren't
sufficiently specific. It reasoned that CHC wouldn't be able to conform its conduct
to the injunction because the injunction doesn't define the term "medically
necessary care" or explain what care must be provided and when CHC must
provide it. We disagree.

149 The term "medically necessary" is a term of art grounded in established
standards used by medical experts, and it has been used by courts to grant
injunctions in the past. E.g., Edmo v. Corizon, Inc., 935 F.3d 757, 803 (9th Cir. 2019).
So, "Medically necessary care" isn't a vague term to CHC in this context because
the trial court found that the TRUE Center prescribed medical gender-affirming
care only when it was medically necessary for the treatment of gender dysphoria.

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Boe, at 3. We therefore conclude that the proposed preliminary injunction is
specific enough to notify CHC of what is expected of it and would preserve the
status quo. See People ex rel. Rein v. Meagher, 2020 CO 56, 1 44, 465 P.3d 554, 563
(concluding that an injunction was sufficiently specific when the defendant was
required to cease violating an agency rule). Accordingly, the trial court erred by
concluding that petitioners failed to satisfy this factor.

## 4. Success on the Merits

150 Having addressed the factors placed at issue in the petition, we pivot back
to CHC's challenge to the trial court's finding as to the first factor: the reasonable
probability of success on the merits. To determine whether this factor is satisfied,
a trial court is "obliged to assess the proper legal standard and applicable burden
of proof which would be required at a subsequent trial on the merits." Rathke,
648 P.2d at 655. This requires a court to "substantively evaluate the issues as it
would during trial." Dallman v. Ritter, 225 P.3d 610, 621 (Colo. 2010). As opposed
to a permanent injunction, to obtain a preliminary injunction, petitioners need
only show a "likelihood of success on the merits rather than actual success." Id.

151 CHC challenges the trial court's conclusion that petitioners demonstrated a
reasonable probability of success on the merits of their CADA claim. The trial
court determined that petitioners "have demonstrated a probability that they will
succeed on the merits of their claims under CADA because the testimony and

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evidence at the preliminary injunction hearing tended to demonstrate that CHC
has ceased offering medical gender affirming care at least in part due to
[petitioners'] gender identity and/or disability." Boe, at 19. We afford the trial
court deference and conclude that the record supports the trial court's finding. See
Trinidad, 1 22, 562 P.3d at 933.

152 To succeed on their CADA claim, petitioners must prove that CHC is a place
of public accommodation and that it denied petitioners full and equal enjoyment
of goods, services, facilities, privileges, advantages, or accommodations because
of their sex, gender identity, or disability. See § 24-34-601(2)(a). Hospitals are a
place of public accommodation. § 24-34-600.3(1)(a)(VII).

153 Petitioners must prove causation-"that, 'but for' their membership in an
enumerated class, they would not have been denied the full privileges of a place
of public accommodation." Craig v. Masterpiece Cakeshop, Inc., 2015 COA 115, 1 28,
370 P.3d 272, 280, rev'd on other grounds sub nom., Masterpiece Cakeshop, Ltd. v. Colo.
C.R. Comm'n, 584 U.S. 617 (2018). Petitioners, however, don't have to prove "that
their membership in the enumerated class was the 'sole' cause of the denial of
services," just that "the discriminatory action was based in whole or in part on
their membership in the protected class." Id. Nor do petitioners have to prove
animus. Id. at 1 37, 370 P.3d at 282.

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154 The trial court considered the testimony and evidence presented at the
preliminary injunction hearing to determine that CHC differentiated between
transgender and cisgender patients. Boe, at 18. There is no dispute that CHC
ceased offering puberty blockers and hormone therapy to transgender patients
under the age of eighteen while continuing to offer puberty blockers and hormone
therapy to cisgender patients under the age of eighteen.11 Puberty blockers and
hormone therapy for both transgender and cisgender patients serve the purpose
of timing and aligning puberty with gender identity. For cisgender patients, the
medication helps time and align puberty with that of the gender they identify
with, which is consistent with their gender assigned at birth. And for transgender
patients, the medication helps time and align puberty with that of the gender they
identify with, which differs from their gender assigned at birth. Denying access
to puberty blockers and hormone therapy for the purpose of gender-affirming care
but not for purposes unrelated to gender-affirming care differentiates care based
on gender identity.

11 CHC, for the first time on appeal, asserts that its policy is based on age, which
isn't a protected class under CADA, and not on gender identity because it
continues to provide medical gender-affirming care to transgender patients over
the age of eighteen. Because this argument wasn't raised at the trial level, and
because petitioners have demonstrated that a court could reasonably conclude the
policy is based on gender identity, we will not address it.

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155 Even without analyzing the disparate treatment between transgender and
cisgender youth, CHC's policy to suspend providing medical gender-affirming
care explicitly discriminates against patients because of their gender identity.
Gender-affirming care is inextricably intertwined with gender identity. In Craig,
the division held that action related to same-sex marriage implicates sexual
orientation. 1 39, 370 P.3d at 282. Similarly, here, action related to gender-
affirming care implicates gender identity.

156 Furthermore, CHC has directly tied its decision to suspend medical gender-
affirming care to the identity of transgender patients. In its letter notifying
patients' families that it was suspending care, CHC stated, "We continue to believe
that all families, including the families of transgender children, should have the
ability to seek and receive the expert medical care their child needs to thrive." And
in a previous letter to patients' families, in response to a federal executive order
that attempted to ban gender-affirming care for patients under nineteen years of
age, CHC stated that the ban "denies the families of gender diverse children the
same rights as other families." CHC's decision to suspend medical gender-
affirming care to youth denies petitioners the full and equal enjoyment of services
based on gender identity.

157 The trial court also found that petitioners demonstrated causation under
CADA because "but for" petitioners' membership in a protected class - gender

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identity - they wouldn't have been denied access to care. Boe, at 13, 18. CHC
argues that "the contributing factor producing the harm of which [petitioners]
complain is that the federal government has used 'every means possible to stop
gender affirming care and has interfered with care in a way that is
unprecedented."" And, CHC asserts, "[t]hat factor breaks any other causal chain."
See Rocky Mountain Planned Parenthood, Inc. v. Wagner, 2020 CO 51, 1 28, 467 P.3d
287, 292 (stating that, in a negligence claim, an intervening cause can break the
chain of causation and dilute an actor's negligence). CHC argued to the trial court
that it had a legitimate, nondiscriminatory reason for its decision to suspend
medical gender-affirming care: the existential threat posed by the Kennedy
Declaration.

158 Petitioners argue CHC can't avoid responsibility by claiming it's merely
implementing a third-party's discriminatory agenda. See Williams v. Dep't of Pub.
Safety, 2015 COA 180, 1 47, 369 P.3d 760, 771 (identifying a theory that holds a
party liable for discriminatory conduct when another "who lacked decision-
making power used the formal decisionmaker as a dupe in a deliberate scheme to
bring about" discriminatory conduct). Although CHC acted reluctantly and
expressed no animus toward transgender patients, the action it chose to take in
response to the Kennedy Declaration specifically targeted transgender youth

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patients. The Kennedy Declaration may have influenced CHC's decision, but it
doesn't absolve CHC of responsibility.

159 The trial court concluded the testimony and evidence presented at the
preliminary injunction tended to demonstrate that CHC's denial of medical
gender-affirming care to petitioners was, at least in part, because of petitioners'
status, which is enough to satisfy causation for a claim under CADA. Boe, at 19;
see Craig, 1 28, 370 P.3d at 280; see also Bostock v. Clayton Cnty., 590 U.S. 644, 656
(2020) (explaining that under Title VII-a federal anti-discrimination statute
similar to CADA-a defendant can't avoid liability by citing another factor that
contributed to the discriminatory decision). We agree with the trial court. CHC's
decision to suspend offering medical gender-affirming care to transgender
patients under the age of eighteen, in response to the Kennedy Declaration, denied
petitioners care because of their gender identity.

160 For these reasons, we conclude that the trial court didn't err by finding that
petitioners had demonstrated that there is a reasonable probability of success on
the merits of their CADA claim.

## III. Conclusion

161 Because petitioners satisfied all six Rathke factors, the trial court abused its
discretion by denying petitioners' motion for a preliminary injunction. We make
the order to show cause absolute, reverse the trial court's order, and remand the

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case to the trial court to grant petitioners' motion and issue the requested
injunction.

JUSTICE BOATRIGHT, joined by JUSTICE SAMOUR, dissented.

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JUSTICE BOATRIGHT, joined by JUSTICE SAMOUR, dissenting.

162 Faced with the risk of losing hundreds of millions of dollars in federal
funding, which would threaten the viability of its entire hospital system,
Children's Hospital Colorado ("CHC") made a considered decision to suspend
medical gender-affirming care that it had previously provided to minors.1 As the
majority acknowledges, this is a difficult and fraught situation. I cannot begin to
imagine the complicated conversations CHC's administration had because of the
impact that its decision would have. While I have no doubt that the results of
CHC's decision have been painful, it is my view that CHC's actions did not
constitute discrimination under the Colorado Anti-Discrimination Act ("CADA").
Hence, I respectfully dissent. Under the first factor enumerated in Rathke v.
MacFarlane, 648 P.2d 648, 653 (Colo. 1982), petitioners' claims are unlikely to
succeed on the merits, and the requested injunction should therefore be denied.2

1 As used here and by the parties, "medical gender-affirming care" refers to a
subset of gender-affirming care that involves medical intervention, such as
hormone replacement therapy or puberty blockers.

2 Given this conclusion, I would not reach any of the other issues addressed by the
majority and therefore express no opinion on those issues.

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## I. Facts and Procedural History3

163 CHC has been providing medical gender-affirming care to transgender
youth through its TRUE Center for Gender Diversity, established in 2007. On
December 18, 2025, the U.S. Department of Health and Human Services issued
what is known as the "Kennedy Declaration," concluding that "[s]ex-rejecting
procedures for children and adolescents are neither safe nor effective as a
treatment modality for gender dysphoria" and thus authorizing the Office of the
Inspector General ("OIG") to exclude providers who offer medical gender-
affirming care to minors from participating in federal health care programs. U.S.
Dep't of Health & Hum. Servs., Declaration of the Secretary of the Department of Health
& Human Services RE: Safety, Effectiveness, and Professional Standards of Care for Sex-
Rejecting Procedures on Children and Adolescents, at 9 (Dec. 18, 2025). Less than two
weeks later, on December 30, 2025, CHC was referred to OIG for violating the
Kennedy Declaration by continuing to provide this care to minors.

164 In direct response to its referral to OIG, on January 5, 2026, CHC advised
patients that it was immediately suspending its provision of medical gender-
affirming care to minors, fearing exclusion from federal health care
programs- which CHC reports would halt federal reimbursements and threaten

3 The following facts are based on the trial court's findings of fact, following the
preliminary injunction hearing.

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the hospital's license, accreditation, and participation in commercial health
insurance plans.

165 Four transgender minor patients at CHC, who had been receiving medical
gender-affirming care for gender dysphoria, brought claims against CHC under
CADA, section 24-34-601(2)(a), C.R.S. (2025), alleging discrimination in a place of
public accommodation on the basis of gender identity, sex, and disability.
Petitioners sought a preliminary injunction ordering CHC to continue providing
"medically necessary care."

166 A preliminary injunction is "an extraordinary remedy." Rathke, 648 P.2d at
651. To be entitled to preliminary injunctive relief, a moving party must
demonstrate each of the following six factors: (1) "a reasonable probability of
success on the merits"; (2) "a danger of real, immediate, and irreparable injury
which may be prevented by injunctive relief"; (3) the absence of a "plain, speedy,
and adequate remedy at law"; (4) that "a preliminary injunction will not disserve
the public interest"; (5) that "the balance of equities favors the injunction"; and
(6) that "the injunction will preserve the status quo pending a trial on the merits."
Id. at 653-54. If even one factor is unsatisfied, then the request for a preliminary
injunction should be denied. Id. at 654.

167 After a hearing, the trial court denied the preliminary injunction, in part
based on the fourth and fifth Rathke factors: The court determined that obligating

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CHC to provide this care "could place CHC at a greater risk of exclusion" and thus
"would pose a grave danger to the public interest" -greater than that to
petitioners.

168 The trial court did, however, find that petitioners demonstrated a
reasonable probability of success on the merits of their CADA claims, satisfying
the first Rathke factor. It explained that because CHC "continues to offer hormone
therapy and puberty blockers to cisgender youth for purposes not related to
gender affirming care[,] [r]efusing to offer these treatments to transgender patients
for the purpose of gender affirming care facially differentiates between
transgender and cisgender patients." Accordingly, the court found that the record
"tended to demonstrate that CHC has ceased offering medical gender affirming
care at least in part due to [petitioners'] gender identity." Along the same lines,
the court found that petitioners demonstrated a sufficient likelihood of success on
their CADA claims that CHC discriminated on the basis of disability given its
finding that gender dysphoria can cause disability.

169 Petitioners then petitioned for a rule to show cause under C.A.R. 21,
challenging the trial court's denial of the preliminary injunction.

## II. Analysis

170 In my view, petitioners' CADA claims do not make it past the first Rathke
factor-likelihood of success on the merits-because petitioners failed to

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demonstrate with reasonable probability that CHC's decision to discontinue
gender-affirming care to minors constituted discrimination under CADA. See
648 P.2d at 653.

171 Section 24-34-601(2)(a) of CADA requires discrimination to be because of a
petitioner's protected status. Specifically, CADA provides:

It is a discriminatory practice and unlawful for a person, directly or
indirectly, to refuse, withhold from, or deny to an individual or a
group, because of disability .. . sex ... [or] gender identity ... the full
and equal enjoyment of the goods, services, facilities, privileges,
advantages, or accommodations of a place of public accommodation
....

Id. (emphasis added).4

172 The majority seems to accept without question that CHC's decision to
suspend medical gender-affirming care to minors constituted discrimination,
largely adopting the trial court's findings that the evidence "tended to
demonstrate that CHC's denial of medical gender-affirming care to petitioners
was, at least in part, because of petitioners' status" and understanding this as
"enough to satisfy causation for a claim under CADA." Maj. op. 1 59.

173 But, from my perspective, CHC's decision to terminate gender-affirming
care for minors was plainly not "because of" petitioners' gender identity, sex, or

4 Hospitals are expressly a place of public accommodation.
§ 24-34-600.3(1)(a)(VII), C.R.S. (2025).

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disability. This decision was made only after CHC was threatened with exclusion
from federal health care programs, which again, would halt all federal
reimbursements and threaten the hospital's license, accreditation, and
participation in commercial insurance plans. It was a decision driven by the direct
threat to the viability of the entire hospital. The majority barely acknowledges the
true cause of the decision by tepidly saying that the Kennedy Declaration "may
have influenced CHC's decision." Id. at 158. That completely minimizes the
reality of the situation. Furthermore, it brushes off these drastic consequences as
speculative. Id. at [ 33. But based on the record before us, I cannot fathom that
CHC would have made this call if the consequences of the Kennedy Declaration
were not so severe. The Kennedy Declaration, not any individual's or group's
gender identity, sex, or disability, was the reason CHC decided to stop providing
medical gender-affirming care. Petitioners' protected status played no role in its
decision.

### A. The Majority's Definition of "Service" Did Not Consider How Gender-Affirming Care Is Fundamentally Different

174 Respectfully, the core of my disagreement is the manner in which the
majority chooses to treat two entirely different medical services as the same thing
in their abbreviated analysis of Rathke's first factor, regarding petitioners'
probability of success on their CADA claim. Maj. op. 11 50-60.

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175 This dispute by and large focuses on the continued administration of
puberty blockers to treat precocious puberty, but not to treat gender dysphoria.
The majority concludes that because certain puberty blockers are still provided to
youth diagnosed with conditions like precocious puberty, a hormonal condition
that causes the early onset of puberty, denying these medications for youth
diagnosed with gender dysphoria is discriminatory because both treatments
"serve the purpose of timing and aligning puberty with gender identity." Maj. op.
1 54. The only difference the majority notes is that for cisgender patients, this
gender identity is consistent with the gender assigned at birth, and for transgender
patients, this gender identity differs from the gender assigned at birth. Id. The
majority's argument depends on defining the "service" at issue here in broad
terms, grouping any and all hormone therapy into one bucket. Id.

176 In contrast, CHC frames medical gender-affirming care as a different kind
of medical service than treating precocious puberty. Thus, it points out that, by
declining to provide medical gender-affirming care (such as hormone replacement
therapy or puberty blockers for gender dysphoria), it is simply declining to include
this service in its "scope of care." CHC argues that "nothing within CADA
requires a hospital to treat every medical condition or offer every treatment
program."

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177 While treatment for gender dysphoria and hormonal conditions like
precocious puberty can both consist of puberty blockers, this does not make these
treatments one and the same, such that providing one service but not the other
constitutes discrimination under CADA. A medical service should not be defined
based on the medication prescribed; rather, a medical service is defined by "the
underlying medical concern the treatment is intended to address." United States v.
Skrmetti, 605 U.S. 495, 513 (2025) (addressing whether Tennessee's ban on medical
gender-affirming care for minors violated the Equal Protection Clause of the
Fourteenth Amendment to the U.S. Constitution). In my view, the majority
conflates the medication provided with the condition treated, regardless of the
reason why it is needed or prescribed. This is problematic. For example, using
prednisone, a corticosteroid, to treat eczema is not the same as using it to treat back
pain-it is the same medication but two different treatments. So, it is troubling
that the majority concludes that CHC's decision to offer one treatment but not the
other is, in and of itself, discrimination. It isn't that simple.

178 As acknowledged by the parties themselves, and as demonstrated by the
record, precocious puberty and gender dysphoria are completely different
conditions, leading to distinct considerations for care. Precocious puberty is a
physical condition causing the early onset of puberty, before the age of eight or
nine, that can result in complications like stunted growth. Precocious puberty, Mayo

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Clinic (July 25, 2025), https://www.mayoclinic.org/diseases-conditions/
precocious-puberty/symptoms-causes/syc-20351811 [https://perma.cc/5CSF-
4TBU]. In such cases, puberty blockers are used to temporarily prevent the onset
of puberty to avoid such complications. Id.

179 On the other hand, gender dysphoria, as defined by the trial court, is a
condition that causes a person "extreme distress due to the difference between
gender identity and the gender or sex assigned at birth." It has a far wider array
of treatment options, including certain pharmaceutical and surgical interventions.5
As the trial court found, depending on the unique needs of a child, treatment may
include puberty blockers, meant to "temporarily pause sexual development" and
allow patients "time to explore their identity."

180 Precocious puberty and gender dysphoria are different conditions. Thus,
the use of puberty blockers to treat precocious puberty and their use to treat
gender dysphoria are different medical services. To lump them into a singular
bucket is illogical and ultimately untenable. Therefore, it is inaccurate to
characterize CHC's decision to stop providing puberty blockers as a treatment for

5 As the trial court found, "Gender affirming care has an expansive definition. It
ranges from the choice of pronouns and preferred name to hormonal treatment
and surgery."

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gender dysphoria while continuing to provide this medication for precocious
puberty as discrimination.

181 Using this correct framing of medical "service," petitioners' gender identity,
sex, or disability was not a "but-for" cause of CHC's decision to cease medical
gender-affirming care for minors. "But-for" causation instructs courts to change
one thing at a time to see if the outcome changes. Bostock v. Clayton Cnty., 590 U.S.
644, 656 (2020). If it does, we have found a but-for cause. Id. So here, the causal
question becomes: Do the services CHC provides to its patients change depending
on their protected status? The answer is a resounding no. Medical gender-
affirming care for minors, as a treatment for gender dysphoria, is not offered, while
other hormonal treatments, like puberty blockers for precocious puberty, are
offered to all patients who need it. Therefore, CHC raises a valid point when it
argues that petitioners may have "allege[d] a valid CADA claim if [CHC] denied
transgender patients puberty blockers for precocious puberty." (Emphasis added.)
They didn't.6

182 The majority cites CHC's statement that it "believe[s] that all families,
including the families of transgender children, should have the ability to seek and

6 Importantly, "events [can] have multiple but-for causes, . . . [s]o long as the
plaintiff's [protected class] was one but-for cause of [a] decision," this can suffice
for purposes of showing discrimination. Bostock, 590 U.S. at 656 (citation omitted).

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receive the expert medical care their child needs to thrive" as indicating that CHC
"has directly tied its decision to suspend medical gender-affirming care to the
identity of transgender patients." Maj. op. [ 56. But, in my view, that attribution
is ill-considered; instead, that comment merely emphasizes that CHC had
compassion for the petitioners and that it wanted to provide that care.

## B. Petitioners Failed to Establish any Evidence of Discriminatory Intent

183 Even accepting the majority's construction of the medical service at issue
here, petitioners' CADA claims fail on intent, which the majority leaves largely
unaddressed.

184 Petitioners argued at the preliminary injunction hearing that the phrase
"because of" only requires a court to review "but-for" causation and that it is
"irrelevant whether or not the hospital's decision is based on animus," citing
Craig v. Masterpiece Cakeshop, Inc., 2015 COA 115, 1 37, 370 P.3d 272, 282 ("CADA
requires no such showing of 'animus."" (citing Tesmer v. Colo. High Sch. Activities
Ass'n, 140 P.3d 249, 253 (Colo. App. 2006))), rev'd on other grounds sub nom.,
Masterpiece Cakeshop, Ltd. v. Colo. C.R. Comm'n, 584 U.S. 617 (2018). However, I
view this as an incomplete characterization of CADA.

185 First and foremost, petitioners' (and the trial court's) reliance on Craig is
misplaced. In Craig, the division's statement that "CADA requires no such
showing of 'animus"" was made to distinguish that case from Bray v. Alexandria

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Women's Health Clinic, 506 U.S. 263 (1993), which concerned an action under 42
U.S.C. § 1985(3). Craig, TT 36-37, 370 P.3d at 281-82. Neither does section 1985(3)
expressly require intent, but in Bray, the Supreme Court applied precedent
interpreting section 1985(3) as requiring plaintiffs to prove that defendant's actions
were motivated by "some . . . class-based, invidiously discriminatory animus."
506 U.S. at 268 (quoting Griffin v. Breckenridge, 403 U.S. 88, 102 (1971)). Thus, in
assessing whether CADA requires a similar showing of intent, Craig took the
absence of similar precedent interpreting CADA's language to conclude that it
does not.7

186 The majority glosses over CHC's intent in ceasing this particular kind of
medical treatment. This is concerning. If, for instance, CHC had decided to cease
medical gender-affirming care because it lacked the expertise to safely continue
offering this service, the majority's rationale would still deem that action
discriminatory. Maj. op. 1 59 (agreeing with the trial court that "CHC's denial of
medical gender-affirming care to petitioners was, at least in part, because of

7 The court in Craig concluded that Masterpiece Cakeshop violated CADA "even if
[it] assume[d] that CADA requires plaintiffs to establish an intent to discriminate,
as in [a] section 1985(3) action," because the "ALJ reasonably could have inferred"
discriminatory intent from Masterpiece's conduct. 1 38, 370 P.3d at 282 (emphasis
added).

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petitioners' status, which is enough to satisfy causation for a claim under CADA").
That would be an absurd result.

187 Common sense dictates that one cannot discriminate against another
without a motive or purpose to do so, at least in this context. The petitioners,
however, failed to present any evidence of discriminatory intent. That's not
surprising - there was no discriminatory intent. CHC has made it very clear that
its decision to stop the provision of medical gender-affirming care to minors does
not come from a place of animus, disdain, or disapproval of transgender
individuals seeking these kinds of services. In fact, the very opposite is true. First,
CHC continues to provide medical gender-affirming care to transgender adults,
unmistakenly signaling that it is not declining to provide this care because of
petitioners' gender identity. Second, CHC had been providing medical gender-
affirming care to transgender youth for years, stopping this care only after they
were referred to OIG for failure to comply with the Kennedy Declaration. Instead,
the record demonstrates that CHC made this decision for its own survival, as well
as the thousands of patients who would be deprived of all medical care if the
hospital were to meet its demise.8

8 Petitioners go even further to argue that Craig establishes that intent is not even
relevant. Yet, even if one disagrees that CADA requires proof of intent, intent
certainly is still relevant to a but-for analysis. For instance, if petitioners had
demonstrated that CHC intended to discriminate against transgender individuals
here, they likely would have established that petitioners' gender identity was a

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188 Nor am I persuaded by petitioners' warning that CHC is "merely
implementing a third-party's discriminatory agenda" and that not considering
this as discrimination would "create a heckler's veto where bigots could threaten
places of public accommodation" and entities like CHC "could use those threats
to justify denying services to minorities." These situations are not one and the
same. Exclusion from federal programs is not mere financial pressure. If the
federal authorities proceed as they have repeatedly promised with a regulatory
sanction under 42 C.F.R. § 1001, CHC will not only "be excluded from
participation in Medicare, Medicaid and all other Federal health care programs,"
42 C.F.R. § 1001.1(a), but, as found by the trial court, it consequently may lose
accreditation by the Colorado Department of Public Health and Environment,
eligibility to participate in commercial health insurance, and the ability to staff
faculty from the University of Colorado School of Medicine. The bottom line is
that the Kennedy Declaration is a government directive that threatens CHC with
catastrophic consequences if it fails to comply.

189 The decision to offer a specific form of medical care is specialized and
technical. It involves complexities and medical considerations that this court

but-for cause for CHC's decision to stop providing medical gender-affirming care
to minors. This would have established that it actually was petitioners' protected
status that caused the decision.

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neither has expertise in nor been provided with enough information to
meaningfully assess: whether a hospital has the resources or expertise to provide
adequate care; whether there are sufficient patients who need the treatment to
make it financially or logistically viable; and, most importantly, whether a hospital
will have resources if it decides to continue providing this care. These are decisions
that a hospital is best equipped to make in the absence of a showing that such
decisions were "because of" petitioners' gender identity, sex, or disability under
CADA.

## C. This Case Is Distinguishable from Those Discussing "Inextricable Intertwinement" of Conduct and Status

190 Admittedly, this issue is complicated by the fact that the medical condition
at issue is experienced only by those in the protected class. Because only the
transgender population seeks out medical gender-affirming care for gender
dysphoria, declining to provide this service exclusively impacts this population.
191 Petitioners thus suggest that CHC's termination of medical gender-
affirming care for transgender minors constitutes discrimination because
"[d]rawing distinctions based on characteristics 'inextricably intertwined' with
transgender status or a gender dysphoria diagnosis is discrimination on the basis
of transgender status or disability." They again quote Craig to argue that "[j]ust
like a 'tax on wearing yarmulkes is a tax on Jews," 1 39, 370 P.3d at 282 (quoting

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Bray, 506 U.S. at 270), "so too is a ban on gender affirming care for 'transgender
youth' discrimination on the basis of gender identity." That analogy is misplaced.
192 In Craig, Masterpiece Cakeshop argued that it refused to bake a cake for the
plaintiffs not "because of" their sexual orientation, but because it disagreed with
plaintiffs' plans to enter into a same-sex marriage. 1 30, 370 P.3d at 280. The
division found this distinction inappropriate, given that the U.S. Supreme Court
has rejected distinctions between "discrimination based on a person's status and
discrimination based on conduct closely correlated with that status." Id. at [ 32,
370 P.3d at 280 (citing Christian Legal Soc'y Chapter of Univ. of Cal., Hastings Coll. of
Law v. Martinez, 561 U.S. 661, 689 (2010), in which the Supreme Court noted its
"decisions have declined to distinguish between status and conduct" in response
to Christian Legal Society's argument that it did not exclude individuals because
of sexual orientation, but because of their engagement in "unrepentant
homosexual conduct," id. at 672, 689).

193 This case is distinguishable, however. This case would be comparable to
Craig only if it was demonstrated that CHC is refusing to offer medical gender-
affirming care because it does not agree with the decisions by petitioners-all
transgender individuals (status)-to seek medical gender-affirming care
(conduct). As already addressed, CHC is not discriminating because of the
petitioners' protected status or conduct.

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194 Relatedly, both parties' briefing compared gender dysphoria to sickle-cell
anemia, a condition affecting almost exclusively people of African descent. U.S.
Ctrs. for Disease Control & Prevention, Data and Statistics on Sickle Cell Disease,
(May 15, 2024), https://www.cdc.gov/sickle-cell/data/index.html [https://
perma.cc/2MET-9JFT]. CHC asserts that it would not be discriminating against
Black people if it declined to treat sickle-cell anemia because it did not have the
appropriate stem-cell treatment available. I agree.

195 Petitioners respond with a different hypothetical. Suppose, they offer, that
a hospital refused to treat HIV or AIDS because it refused to treat homosexual
men. They suggest that, if we determine CHC did not engage in discrimination
here, this hypothetical provider would likewise be immune from CADA liability
for refusing to treat HIV or AIDS even if it explicitly ties its decision to sexual
orientation discrimination.

196 These hypotheticals actually highlight the validity of my position on intent.
In the sickle-cell anemia hypothetical, declining to offer stem-cell treatment for
sickle-cell anemia patients would not be discriminatory because the reason for
denying the service was solely related to the unavailability of stem-cell treatment.
By contrast, in petitioners' HIV/AIDS example, the hospital's conduct would
constitute discrimination because the reason for denying care was to avoid treating
a protected class of people based on their protected status.

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197 Here, declining to provide medical gender-affirming care for minors would
have been discriminatory if the record reflected that the reason for this decision
was to discriminate against transgender youth because of their protected status or
associated conduct. But, it does not. CHC's decision had nothing to do with
petitioners' protected status. Because the majority fails to apprehend this, it
misapplies CADA.

## III. Conclusion

198 I do not view petitioners as having adequately demonstrated a reasonable
probability of success on the merits of their claim that CHC discriminated against
them "because of" their gender identity, sex, or disability. They therefore have not
met their burden under the first Rathke factor. Not only does the record make it
clear that CHC did not intend to discriminate on any of the grounds raised, but it
also shows that CHC's decision was made solely with the survival of the
hospital-and, by extension, the well-being of its present and future patients,
including petitioners themselves -in mind.

199 Because petitioners were not entitled to a preliminary injunction, I
respectfully dissent.